If courts agree, state laws that restrict mifepristone would be “preempted” by federal laws, Donley said, potentially meaning states could not restrict medication abortions. Constitution provides that federal law trumps state law when there’s conflict,” said Greer Donley, an assistant professor at the University of Pittsburgh Law School. Some experts see clear guidance in the Constitution - but, as always, interpreting that document is in the eye of the beholder. (Regulations on how medications are prescribed, however, are left to the feds.) “It’s an underdeveloped area of the law,” Rebouché said, in large part because “states haven’t really tried to ban FDA-approved drugs before.”Ĭomplicating matters, states have the power under the 10th Amendment to regulate the practice of medicine, which is often interpreted to include how drugs are dispensed. But it’s less clear whether it also sets a national ceiling, meaning states cannot regulate drugs more harshly than the FDA does. States cannot approve drugs that the FDA has not approved the regulatory agency sets a national floor for what can and cannot be prescribed. The coming battles over mifepristone are entering largely uncharted legal territory. In legal terms, the issue at play is known as “preemption” - whether states can overrule the federal government on a particular matter of law. “I don’t think anyone can accurately predict what the laws and legal responses will look like as this develops.” The preemption argument “It’s going to be a fast-moving and dynamic situation,” said Rachel Rebouché, a law professor at Temple University. If restrictive states win out, arguing the regulation of medical practice resides with them, medication abortion bans will stand, and precedent would be set for states to exert more control over what drugs are available within their borders - from opioids like Zohydro to the emergency contraception pill known as Plan B. If pro-choice advocates prevail, access to medication abortion could be protected in all 50 states. Whichever view is left standing could have profound implications. And while the Constitution offers some guidance, it depends on how courts interpret that text. But that case played out in a very different atmosphere - before the Supreme Court swung to a 6-3 conservative majority that strongly favors the rights of states over those of the federal government. A federal district court struck down the state ban. In 2014, for example, Massachusetts tried to outlaw use of Zohydro, an FDA-approved painkiller, in response to the opioid abuse crisis. “It’s crazy that states are trying to ban access to an FDA-approved drug,” said Kirsten Moore, director of the Expanding Medication Abortion Access Project. And lawmakers in more than a half-dozen states have introduced legislation this year that would ban mifepristone entirely. Many anti-abortion states have laws on the books that stipulate that mifepristone must be prescribed or taken in person, or that it can be taken only through the seventh week of pregnancy rather than the 10th, as the FDA allows. Opponents fear that it could subvert laws in 13 states with abortion bans poised to take effect imminently or in those that place stricter rules on the use of abortion medications than the FDA requires. Advocates hope the Food and Drug Administration’s decision last December to allow the pill to be prescribed via telehealth and distributed by mail will expand abortion access in a post-Roe world. And this fight - over access to medication abortion - could ultimately erode the federal government’s power to decide which drugs are safe and effective.Īt the center of it all is mifepristone, the first of two drugs taken to end a pregnancy. Wade era is over, and the next legal battle over abortion is taking shape. It does not store any personal data.The Roe v. The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. The cookie is used to store the user consent for the cookies in the category "Performance". This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other. The cookies is used to store the user consent for the cookies in the category "Necessary". The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". The cookie is used to store the user consent for the cookies in the category "Analytics". These cookies ensure basic functionalities and security features of the website, anonymously. Necessary cookies are absolutely essential for the website to function properly.
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